Month: September 2008

Kentucky’s Domain-Name Grab

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The governor of Kentucky, Steve Beshear, is cracking down on Internet gambling sites, which he refers to as “leeches on our communities.”  (See story.)  The governor filed a lawsuit in Kentucky state court in an attempt to force gambling sites to prevent access to Kentucky residents.   To get the sites’ attention he asked the court to transfer ownership of their respective domain names to the state.  It’s an audacious strategy that raises a number of issues about the state’s power to achieve it.  Assignment of the names to the state is not the same thing as garnishment but still this case reminds me of NSI v Umbro International–perhaps because I reread it a few days ago.   This is the Virginia case in which Umbro attempted to attach a domain name as collateral for the domain name owner’s debt to Umbro.  NSI, the domain name registrar, objected to the attachment.  The court refused to treat the domain name as property.  The court held that a domain name contract gives the name’s owner a license to use the name for a set period of time.  More specifically, it gives the name owner the right to have domain name root servers point to the owner’s website when someone enters the domain in a web browser address bar.  This contract for services does not give the owner a property right that a creditor can attach.

Blocking these sites from Kentucky residents’ access is also novel, and difficult.  Kentucky is not China or Saudi Arabia, where the government exercises significant control over what Internet traffic crosses the border.  The remedy seems futile.

The trial court judge refused to grant the governor’s motion to transfer the names, asking all parties to brief the issues so he can consider what to do.

No Leadership

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A half-dozen students were in my office yesterday afternoon to talk about their exam today.  I put CNN.com on the monitor, refreshing the page every ten minutes or so.  Thus, as we discussed their exam-related questions we could also watch the unfolding consequences of the House of Representatives cratering the economic rescue bill.  The Dow down 700, then 500, then 650, then 770 . . . the failure of house leaders on both sides of the aisle to rally sufficient votes . . . the White House’s totally ineffectual pleas to pass the bill . . . the failure of Obama and McCain both to put themselves squarely in front of the bill and explain why it’s passage is important.  It was a total failure of political leadership, a verdict that is splashed across front pages and op-ed pages everywhere.

Internet Down Under

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This article from cnet–Net neutrality: An American problem? presents the views of three executives from Australian ISPs who argue that net neutrality is a problem of the typical U.S. ISP unlimited-use business model, not bandwidth.  (The article defines net neutrality as opposition to the practice of ISPs to tier or establish priorities for content).  Their thesis is borne from the ISP business model dictated by Australia’s “unique geography:”  “[A]ll ISP’s in Australia . . . have got used to pay-as-you-go and have handed those pay-as-you-go principles on to their customers.”  In other words, the more bandwidth an Australian Internet user consumes, the more her pays.  It’s an interesting take, both for what it says and what it omits.  The goal of those who advocate net neutrality in the U.S. as a matter of policy is not unlimited bandwidth for a fixed price.  The goal is the perpetuation of an open Internet architecture–not for the entire Internet but somewhere, somehow–that continues the original Internet’s non-hierarchical, no-permission-required, everyone-is-a-publisher ethos. 

By Any Other Name

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It may nothing more than that I’m a lawyer who believes Words Matter, but calling the bill pending before Congress to purchase mortgage-backed assets a bailout provides more heat than light.  Other than investment bankers and others clutching on to their jobs before they sink beneath the foam few people want to bail out Wall Street as an end in itself, which is what the term suggests the bill is for.  Many of those railing against its passage–40 opposed for every 1 in favor in this poll, 100 to 1 against in that Congressman’s constituent messages–think “Wall Street got us into this mess, so why should we taxpayers bail them out?”

Here’s why:  if this (take your pick) credit market relief/toxic asset superfund bill doesn’t pass then the credit conflagration will be apocaplyptic.  There will be no credit to buy new factory equipment or purchase inventory, no money to refinance mortgages, no credit at all.  Wachovia Bank is the latest victim, acquired by Citigroup today for ten cents on every dollar of Friday’s closing price.  Removing these toxic assets from balance sheets puts more money into the system and should ease fears of further bank collapses and help open credit flows.  It won’t solve our economic problems, but if it does not pass soon our economic problems will be far worse.

In a prior life I did workouts of non-performing loans.  One lesson I learned early is don’t take the borrower’s default personally.  Sometimes the borrowers were fraudsters and some of them went to jail, but I learned not to treat defaults as teachable moments for the borrower’s moral edification.  Our fund’s financial interest was in cutting our losses, getting our money out, and putting it to work again as soon as possible.  Sometimes that meant holding my nose and letting a defaulted borrower leave the table with some money in his pocket.  Distasteful, but if it meant we got our money back today instead of after months of legal fees and delay, it was the best decision financially.  I didn’t believe I served my client’s interest through punishment, and my client didn’t think so either. This financial relief bill involves much more complicated issues but it is still a workout.  A massive, critical, desperately essential workout.

I understand why Main Street wants to punish Wall Street (a binary distinction that obscures more about the nature of our financial problems than it reveals) but this week is not the time for head-hunting.  In Friday’s debate both Obama and McCain missed opportunities to educate and persuade why federal relief is essential. Passing this bill is probably not enough to calm the markets, but it’s the first step.

Other Shoe Drops on RIAA

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Today’s headline:  Judge Declares Mistrial in Jammie Thomas Trial.  The judge’s ruling has been expected in this file-sharing lawsuit since he decided in the aftermath of the jury’s pro-RIAA verdict that he instructed the jury incorrectly on the conduct necessary to find copyright infringement had occurred.  To follow the arc of this case read RIAA Wins Jury Verdict, RIAA v Thomas Post-Mortem, and Judge Admits Error in RIAA Case.

Piles o’ Paper

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Last Thursday I received about 133 papers from students in my three classes.  Over the four days since I’ve read and graded all of them.  I’ve graded at my desks at BU and home, on four different sofas in two houses, at two kitchen tables, and in the car going to and from Maine.  (I was not driving.)  I’ve graded early in the morning and late at night.  I’ve tried to be consistent.  After I read the first 30 or so papers in the largest group I realized I needed to be more flexible, so I graded the final 80 papers accordingly and went back and up-graded the first 30.  My goal has been to return these papers today, which kept me on task and lowered the priority of everything else such as responding to emails, reading the paper, writing recommendation letters, and sending birthday greetings.  Now I get to catch up although there’s another 20-30 papers coming in today.  Grading is the chore we like least but rewarding, too, and not just because I make two big checks on my to do list.  I learn a great deal about my students through grading these papers, about how they think, what they connect with, and what they miss.  It’s humbling to realize that matters I thought I made clear remain murky and deeply satisfying to see students make connections between disparate concepts.

All of which is an indirect way of saying if my communications are tardy I have a good excuse and I’ll make it up.  Soon.  Right after I finish the next group of papers.

Brooks Editorial

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After yesterday’s post I vowed I would not mention Sarah Palin again soon, but David Brooks’ editorial in today’s Times made me break my vow.  I disagree with Brooks far more often than I agree with him, the point being that Brooks is not preaching to the Times’ choir.  Today’s editorial, titled “Why Experience Matters“, takes issue with Palin’s nomination as VP candidate and with trumpeting of instinct over experience it represents.  He describes the Bush administration as “the anti-establishment attitude put into executive practice” and states this attitude “made Bush inept at governance” because governance “is hard . . . requires acquired skills . . . [and] [m]ost of all, it requires prudence . . . How is prudence acquired? Through experience.”  He concludes that Palin “has not been engaged in national issues, does not have a repertoire of historic patterns and, like President Bush, she seems to compensate for her lack of experience with brashness and excessive decisiveness.”  All reasons why McCain showed terrible judgment in selecting her. 

McCain’s Judgment II

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A post two weeks ago about the selection of Sarah Palin asked whether McCain was serious.  The pundits view the selection as a success because it invigorated the McCain campaign.   “Ordinary Americans” like Palin because she is “just like us.”  That’s the problem.  I don’t want a President and Vice President who are just like us.  I want elected leaders who are more knowledgeable, more thoughtful, better-read, and more in tune with the world’s complexities than us.  We’ve had eight years of one of the worst administrations in history led by someone “ordinary Americans” can relate to.  Having a New York Times editorial echo these thoughts is small comfort since the “ordinary Americans” who’ve embraced McCain and Palin don’t take their cues from the Times.  Others, though–the “extraordinary Americans”–see that the emperor has no clothes.  I called Palin’s selection “a cynical, craven capitulation to the far right [that} underscores the  deep flaws in McCain’s judgment.”  The Times said it “raises profound questions about his judgment.” I said “[t]his decision is bold only in the context of politics as a game.”  The Times said “[i]f the choice was, as we suspect, a tactical move, then it was shockingly irresponsible.”  Palin’s scripted, non-substantive, shallow–how can anyone take seriously someone who claims insight into Russia because it’s visible across the Bering Strait?–make her shortcomings painfully obvious.  If McCain were CEO of a public company and he promoted to second in command a person so obviously lacking in knowledge about the business the shareholders would have his head, the second’s physical resemblance to Tina Fey notwithstanding.  (Fey nailed Palin’s appeal in Saturday’s opening sketch on Saturday Night Live.)   I’d laugh at McCain’s buffoonery if the stakes were not so high.

PS:  Bob Herbert’s Op-Ed 9/12 Times Op-Ed piece